What Obama's New Killing Rules Don't Tell You

By
Ryan Goodman and Sarah Knuckey

May 24, 2013

In a landmark speech on counterterrorism yesterday, President Obama outlined rules for the conduct of lethal operations abroad. The speech itself may mark a turning point as the president tries to steer the country away from "perpetual war," and toward a counterterrorism policy that better balances security and rights. The administration also published written rules for the use of lethal force, an important response to years of criticism of the administration's secretive killing program. Many hoped this moment would herald a new era of transparency. To be sure, these steps bring clarity to some issues. But, the framework he presented also raises some troubling questions and leaves important older questions completely unanswered.

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Where do the rules apply? The new rules apply only to operations conducted outside "areas of active hostilities." A lot turns on the definition of that geographic boundary. For all we know, the administration may define parts of Pakistan, Yemen, and elsewhere as a zone of hostilities. The administration, however, doesn't tell you how it decides when and where places of active hostilities exist. And wherever such zones exist, the new rules are irrelevant. In short, it is possible that the "new" rules may leave completely untouched some of the most significant parts of the existing drone program.

Signature strikes: in or out?Some suggest that the new rules put an end to controversial signature strikes, carried out based on patterns of behavior assumed to indicate militancy. The new rules do finally rebut reports (sourced originally to anonymous government officials) that "all military-aged males in the vicinity of a target are deemed to be combatants." Yet there is no clarity at all about what actual "signatures" were used, or might still be in use. Nothing in the new rules requires that the government kill only named targets, and nothing in the rules prohibits behavior-based targeting. On the contrary, senior administration officials, hours before the President's speech, suggested that signature strikes will continue but perhaps decrease "over time."

Whether to capture or kill?: One of the rules, already known from the leaked Department of Justice white paper is that the government may kill only when "capture is not feasible." This phrase begs the question: at what price is capture considered infeasible? The answer, according to the government, is clearly not limited to situations in which it is physically impossible to apprehend an individual. The rule apparently includes situations in which it is not possible to capture the individual without significant risks to U.S. forces or to nearby civilians. The President's speech was at its most persuasive in explaining those types of concerns.

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His remarks however failed to address a nagging concern, and may have needlessly aggravated it. The concern, raised in recent books by Daniel Klaidman and Mark Mazzetti, is that Obama turned to drone strikes as the tactic of choice once the apprehension and detention of international terrorists became a political "briar patch" for the administration. In his speech, the President suggested that wrapped up in the definition of feasibility are concerns about the political fallout from ground forces capturing an individual. The President appeared to suggest that he may consider capture "foreclosed" — that is, off the table — when that option would result in a public "backlash" among local populations or spark international tensions. We trust the President is not actually saying that when apprehending an individual is politically costly, that person might instead be killed. But his speech missed an opportunity to dismiss such frequently voiced concerns once and for all.

Killed but not "specifically" targeted: In its belated acknowledgement that the US has killed four American citizens since 2009, the administration gave us another novel turn of phrase: "not specifically targeted." This is carefully crafted, but highly opaque wording. The government says that one American, Anwar al-Aulaqi, was "specifically targeted and killed." The other three, it says, were "not specifically targeted" but no explanation whatsoever is given for their deaths. Were these Americans purposely or knowingly killed in signature strikes? Were they intentional or accidental collateral damage in a strike on some other target? Or killed by mistake? We just don't know, and this raises significant questions not just about the targeting of Americans, but of the thousands of others killed.

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Senior operational leaders, or any terrorist? In an important piece, McClatchy reporter Jonathan Landay accurately notes that the new rules do not limit force to senior operational leaders, although this limit appeared in numerous prior government statements and the much discussed White Paper. The new rules are at odds with some popular assumptions that only high-level leaders are targeted. The written rules indicate instead that any member of a terrorist group carrying out attacks is targetable. This revelation appears consistent with past findings that only 2 percent of killings have been of "high-level" militants, and that the vast majority of strikes have killed low-level fighters. The administration thus appears to be taking a more explicitly expansive approach to its kill list.

Threats to U.S. persons and the end of bargaining chip strikes? What or whom does a terrorist have to threaten to make them targetable by the U.S. government? The new rules say that the government will kill only to "prevent or stop attacks against U.S. persons." This would seem to rule out U.S. attacks carried out at the request of Pakistan or Yemen and involvement in other countries' purely domestic insurgencies, attacks sometimes called "side-payment strikes" or "goodwill strikes." However, a "reservation" at the end of the written rules states that the President can still take action to protect U.S. allies – does this leave open future strikes carried out for other countries? And given reports indicating that such strikes have taken place in the past, should we now assume that the administration has decided to completely forgo all such tactics?

When can civilians be killed? The rules set out a strict test: strikes will take place only when there is a "near certainty" that civilians will not be injured or killed. This is far stricter than the traditional test in armed conflict, which permits civilian deaths proportionate to a military advantage. Officials suggested that this test may have existed "for the last several years." However, the demanding test is difficult to reconcile with specific allegations of civilian harm, such as the 2009 Al-Majala strike in which 21 children were reportedly killed, or numerous individual reports of civilian harm in Pakistan. To fulfill its transparency and accountability commitments, the administration must now answer the specific allegations.

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Still no clarity about key terms: "associated forces" and "imminence." The administration has received much criticism for its "elongated" imminence concept. Its position that it can kill "associated forces" of al-Qa'ida has also been a key point of controversy because the government has never adequately defined who these forces are. Although many anticipated increased transparency on these points, little was offered, and we still don't meaningfully know how these categories are being applied or defined.

The President deserves considerable credit for publicly addressing the nation about the administration's targeting operations abroad, and for releasing written criteria for killing. But important doubts and questions remain. His administration lost the trust of many when the White Paper revealed an incredibly perverted definition of "imminence" — one that almost defines the concept by its opposite. Accordingly, when the President states that the new rules will respect the "sovereignty" of foreign nations and protect the lives of "non-combatants" — we want to assume that those words retain their ordinary meaning. However — and until the White House releases the legal memos that explain its understanding of such terms and its legal justification for the drone program more broadly — there is reason to remain deeply skeptical. Indeed, without those documents and with the questions left open by the President's speech, it remains impossible for the public to, in the President's words: "make informed decisions and hold the Executive Branch accountable."

Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, where he also serves as Co-Chair of the Center for Human Rights and Global Justice. Sarah Knuckey is Director of the Project on Extrajudicial Executions at New York University School of Law, and a Special Advisor to the UN Special Rapporteur on extrajudicial executions.

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